Lackovic v Insurance Commission of Western Australia

(2006) 31 WAR 460; [2006] WASCA 38

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Civil appeals
3. › Appellate review of fact-finding
4. › Trial judge's credibility findings
5. › Whether reasoning based on inferences from undisputed facts or on credibility assessment
6. › Whether trial judge's fact-finding and reasoning erroneous
7. › Whether appellate intervention required
8. › Whether retrial should be ordered
9. › District Court of Western Australia Act 1969 (WA), s 79(1)
1. Appeal
2. › Civil appeals
3. › Admission of further evidence on appeal
4. › Principles governing admission
5. › Whether special grounds established
6. › Whether evidence could have been obtained with reasonable diligence
7. › Whether highly likely to produce different result
8. › Whether just to admit further evidence
9. › Rules of the Supreme Court 1971 (WA), O 63 r 10(1)
1. Practice and Procedure
2. › Discovery
3. › Legal professional privilege
4. › Failure to discover privileged document
5. › Whether non-disclosure in discovery list constitutes waiver of privilege
6. › Whether party failing to discover privileged document obliged to produce it
1. Practice and Procedure
2. › Legal professional privilege
3. › Waiver
4. › Whether disclosure of privileged document pursuant to Freedom of Information Act constitutes waiver
5. › Freedom of Information Act 1992 (WA), s 23(1)

Quick Take

A trial judge's rejection of evidence based on 'experience of life' or 'common sense' without identifying the particular experience or reasoning, on a matter where expert evidence could have been called, constitutes an error of reasoning that warrants appellate intervention. Non-disclosure of a privileged document in the discovery process does not waive legal professional privilege, but voluntary disclosure under the Freedom of Information Act does constitute waiver. Even where the formal tests for admission of fresh evidence on appeal under O 63 r 10(1) are not met, the court retains a residual discretion to admit evidence where justice requires it.